News Blackout Regarding Shoreling Master Program Hearing...Why?

Editorial by Joe D'Amico

Port Townsend, WA - On April 20, 2010, the Washington State Department of Ecology held an Open House and Public Hearing regarding proposed changes to Jefferson County Shoreline Master Program, which will likely result in the biggest land grab in Jefferson County history since the inception of the National Parks. Currently Jefferson County has a 35' setback and the Board of County Commissioners (Austin, Sullivan and Johnson) is proposing 150' setback. What was most noticeable was the lack of media coverage during the hearing. The hearing was held at the Fort Worden commons and it was standing room only. Jeffco101 was present and videotaped the entire meeting. There was an estimated crowd of 225 citizens, which eighty-eight (88) people gave testimony. Eighty (80) percent of the citizens attending were against the new proposed 150' shoreline buffers. "Shorelines" includes streams, rivers, lakes, ponds and wetlands. Some properties in Jefferson County will become unbuildable, crushing the dreams of families, who have lived in the community for decades and were holding their properties for their children and grandchildren, all the while paying taxes on their property at highest and best values.

What Jefferson County has failed to recognize is the number of non-conforming lots, businesses and uses that will be created and the economic impacts, which will likely bankrupt Jefferson County and many of its taxpayers. Today, if you ask Jefferson County the number of non-conforming homes/structures/business and uses, which will result from this proposed 150' setback, Jefferson County doesn't know the answer. This is a failure to conduct proper due diligence by the Board of County Commissioners prior to making this impulsive decision. The planning commission originally proposed, a 50' setback. The BOCC has made the decision themselves to change the standard to 150'. Three County Commissioners (Austin, Sullivan and Johnson) with significantly less knowledge and understanding of the issue supersede and decide to overrules the Planning Commission - the very group that has worked on and studied the issue in great detail. This is an insult to the planning process and the citizens of Jefferson County.

This will be financially catastrophic for Jefferson County and its employees. Here's why. What the board of County Commissioners has overlooked is that once the property owner/user becomes non-conforming and the property owner appeals any county enforcement action, a Hearing Examiner (HE) will hear the case. This will be the same for a Conditional Use Permit (CUP). The HE will be appointed at the cost to the county to the tune of $3 - $5K per case/hearing. In SSNW case, I would estimate that HE cost was $20-25K. After the hearing, the landowner/user will have the right to appeal to Superior Court. Again, Jefferson County will need to bear the cost of defending its decision in court adding additional burden to the Prosecutors office. The Risk Pool, which insures Jefferson County, will NOT pick up the cost of the hearing examiner or the appeal to Superior Court unless the land owner is seeking damages. In other words, don't file your damage claim until your land use action is final otherwise you will be fighting 28 combined counties (The Risk Pool) instead of one. Also, be mindful of your statute of limitation with regards to the timing of your damage claim.

The term non-conforming was used throughout the DOE hearing and no one knows the word better then Joe D'Amico, President of Security Services NW (SSNW). The dispute regarding SSNW on Discovery Bay is all about SSNW's non-conforming status. And has cost SSNW over $800K to defend its self. Anyone who becomes non-conforming through this proposed regulation can expect future litigation, physical and mental stress, and even be threatened with possible criminal action if you fail to comply under UDC 18.50, not to mention being dragged through the press. Even though all through the hearing DOE representatives said you can " carry on with what you got ", it's not what the county attorneys will use against you in court (see below).

The following was taken from a Jefferson County brief filed against SSNW on March 8, 2006

....Not surprisingly, the Hearing Examiner determined that SSNW had not established
itself as a lawful nonconforming use. In Washington, nonconforming uses are disfavored.
Rhod-A-Zalea v. Snohomish County, 136 Wn.2d 1, 959 P.2d 1024 (1998). Therefore, it is
the landowner's burden when confronted with an enforcement action to prove a lawful
nonconforming use which existed prior to the adoption of the land use regulation. State v.
County of Pierce, 65 Wn. App. 614, 623-24, 829 P.2d 217 (1992).

DATED this 8th day of March, 2006.
JEFFERSON COUNTY'S BRIEF IN
OPPOSITION TO STAY - 15
#572974 vI /30313-015
Mark R. Johnsen, W BA #11080
Of Karr Tuttle Campbell
Attorneys for Defendant
Jefferson County
l,ulI' ()ffices
KARR TUTTLE CAMPBELL

...are you getting a warm and fuzzy feeling regarding non-conforming

Note: Kitsap Superior Court later found that SSNW did have a legal non-conforming use reversing the contracted Jefferson County Hearing Examiner Irv Berteig

Once the burden of legal non-conforming falls in your lap, it's up to you to prove your non-conforming use. In the eyes of Jefferson County this will mean written proof not verbal testimony, which they historically argue has no standing in an administrative proceeding. In other words you are proven guilty until YOU prove otherwise. Also, if you should abandon your use for more than two (2) years (UDC 18.20.260 sec. 1a), you lose your non-conforming status. This element the county needs to prove. Bottom line, becoming non-conforming adds risk to your property for the purpose of resale, use and enjoyment. It perked my ears when I heard Jeffree Stuart say " carry on with what you got ". What this means to me is not one change or increase in use, which is also in the Jefferson County code. In the eyes of Jefferson County an increase in the quality of a service is a change/increase, which means you would be legal. The citizens of Jefferson County should request in writing, from DCD, that their property/use is a "Lawful non-conforming use", if and when this proposed rule is adopted. What Jefferson County tried to do with SSNW was to say that SSNW was non-conforming but not a Lawful non-conforming use. Remember the Hearing Examiner that hears your case is contracted by Jefferson County.

Another mindful point regarding non-conforming uses. Once the masses are put to rest, it's easier to pick you off one non-conforming use at a time. Better to fight now with your neighbor or forever hold your peace.

These comments are not to be intended as legal advice and its worth what you paid for it.